topQ: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate.

answer The Netherlands

A: Professors in immigration law Groenendijk (5 April 2004) and Boeles (8 October 2004), sent letters to the parliament with commenting on the decision to raise the minimum age for spouses, to increase the income requirement and to introduce the integration requirement for spouses before entry the Netherlands. Although these letters led to a number of critical questions by MP's, there was no real debate on those issues at that time.
A public debate has not occurred.

topQ: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?

answer The Netherlands

A: The Royal Decree pretending to implement the Directive raised the age requirement for family formation from 18 to 21 years and the income requirement for family formation from the level of social security for married couples to 120% of the minimum wage for persons aged 23 and up. Also, the implementation of the Directive has led to the introduction of the integration exam abroad as a condition for family reunification. All three changes deteriorated the situation of third country nationals and their family members. The Decree that implemented the Directive also deteriorated the situation of Dutch nationals, who are generally treated in the same way as third country nationals when it comes to family reunification, by abolishing the more favourable public order exception for Dutch nationals.
Positive changes due to the Directive are the fact children can be reunited with their sponsor parent even is parent and child have been separated for five years or more. The policy that parent and child could not have been separated for more than five years in order for the child to qualify for family reunification, was abolished by letter of the Minister of Alien Affairs and Integration of 25 September 2006. Also, Article 17 of the Directive has led to the introduction of the relevant considerations mentioned in the article in the Dutch decree concerning refusal (to renew) (of) a residence permit on public order grounds.
Also, the introduction of the right of unaccompanied minor refugees to be reunited with their parent(s) can be considered is a major improvement.

topQ: Are there already judgments of national courts applying or interpreting the Directive? If so on which issues?

answer The Netherlands

A: Yes, and on the following issue:

The reconcilability of the Dutch requirement of 'real family relationship' and the Directive

Whether third-country nationals also having Dutch nationality can rely on the Directive

The reconcilability with the Directive of the Dutch income requirement of 120% of the minimum wage of persons of 23 years and up for family formation

The reconcilability with the Directive of the Dutch system where it is tested twice, once when deciding on the application for temporary stay and once when deciding on the application of a residence permit, whether someone meets the conditions for family reunification

topQ: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.

answer The Netherlands

A: There is an indication of a possible effect of the judgment. Three months after the judgment the Minister informed the Dutch Parliament that the requirement for reunification with minor children that the parent and the child should not have lived apart for more than five years was abolished. The letter did not make explicit reference to the judgment nor to the Directive, possibly to avoid claims for damages by parents who were refused reunification with their children.

The Judgment received attention in the following articles in Journals:

topQ: Article 3(1): How is the clause: who has reasonable prospects of obtaining the right of permanent residence implemented in the national law?

answer The Netherlands

A: Article 3.15 (Dutch) Aliens Decree states that a residence permit will be issued to the (unmarried) partner or minor child of an alien holding a residence permit which is issued for a non-temporary goal. Non-temporary is specified in article 3.5 Aliens Decree, where the temporary reasons of residence are exhaustively summed up in paragraph 2. Paragraph 3 of that article states that all other reasons of residence are of a non-temporary nature.

topQ: Article 3(3):
Will a third country national also having the nationality of your country be able to rely on the Directive?

answer The Netherlands

A: According to a judgment of the Dutch Council of State, the highest Dutch administrative Court, the Directive does not apply to third country nationals also having the Dutch nationality (JV 2006/172). Dutch nationals will have to rely on the Dutch rules regarding family reunification and cannot invoke directly applicable provisions of the Directive when these are more favourable. The consequence of this judgment is that third country nationals who have resided in the Netherlands long enough will risk losing their right to family reunification by naturalisation.

Shortly after this judgment, the Council of State ruled that Turkish nationals who naturalised to become a Dutch citizen would loose their rights under decision 1/80, even if they has not renounced their Turkish nationality. Judgments of lower Courts go in a different direction.
The Dutch Council of State did not take account of a Dutch policy (WBV 2005/5, entry into force 15 February 2006, later published in Aliens Circular Vc B2/1) which used to state that Dutch nationals were able to rely on the Directive, unless the rules on free movement of Union citizens would apply (no family reunification between or with Union citizens; sponsor may not have made use of free movement in EU on the basis of which he is (still) a Union Citizen). For lower Courts, this policy measure was a reason to declare the Directive of equal application to third-country nationals also having Dutch nationality, even though the Minister of Alien Affairs and Integration argued that the policy measure ended up in the Aliens Circular by mistake (See Judgment of Court of The Hague (zp Rotterdam) 14 July 2006 (LJN: AY5396) and Court of the Hague (zp Zwolle) 14 July 2006 (Awb 05/40250) Dutch Case Law can be found on Rechtspraak.nl).

On 1 January 2007 the extract of the Aliens Circular declaring the Directive of equal application to Dutch nationals was silently deleted. The Court of the Hague, however, in a decision of 18 October 2006 (LJN: AZ 0506), also came to the conclusion that the Directive applies to third country nationals also possessing Dutch nationality without making use of the policy measure in the Circular. The Court used the preamble and the goal described in article 1 of the Directive to state that the wording of the Directive does not exclude application to dual nationals. According to the Court, no account has been taken of the position of persons having both the nationality of the country of origin and of a Member State during the negotiations of the Directive. If the Court would decide to rule out dual nationals of the scope of application of the Directive, it would create the possibility that the Directive would have a different effect in each Member State. This would also imply that third country nationals, who have resided in a Member State long enough to apply for naturalisation, would loose their right to family reunification under the Directive if they become a Dutch national. According to the Court this would constitute a discrimination on grounds of nationality, which is explicitly prohibited by article 12 of the EU Treaty.

topQ: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.

answer The Netherlands

A: Dutch nationals are subjected to the same conditions for family reunification as third country nationals. However, they are not able to rely on the directly applicable provisions of the Directive.
Article 3.20 Vb used to contain a rule that set lower standards for the public security exception for family members of Dutch nationals. This rule disappeared upon implementation of the family reunification directive.

topQ: Article 4(1):
Has the right to family reunification of spouses and minor children been codified in national law? If so, please mention the relevant provisions of national law.

answer The Netherlands

A: Yes, but only partially and partially incorrect in article 3.13 – 3.18 Vb. The Royal Decree pretending to implement the family reunification directive introduced several new restrictions to family reunification (f.i. requirement of 120% minimum wage of persons aged 23 and up and of being 21 years of age for family formation, wider public order exception). The only provision making family reunification more liberal as a result of the directive is article 3.24a which provides for family reunification of unaccompanied minors and article 3.22 paragraph 4 which provides for family reunification without application of the income requirement for family members of refugees with another nationality.

topQ: Article 4(1) and 4(6): (children over 12 or 15 years)
Does the national law of your country provide special rules concerning the admission of children aged over 12 or 15 years?

answer The Netherlands

A: In her letter of 25 September 2006, in which the Minister of Alien Affairs and Integration abolished the requirement of a ‘real family relationship' for family reunification between parents and minor children, the Minister emphasised that children between 16 and 18 years of age will have to fulfil the integration abroad criterion for family reunification if they no longer have to go to school.

The only extra requirement for children of 15 years and older is that they have to prove that they are not responsible for the care of children by signing a declaration.

topQ: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?

topQ: Is your country barred from using the exceptions in Article 4(1) last sentence and Article 4(6) by the standstill-clauses in those two provisions?

answer The Netherlands

A: Yes. In our opinion, obliging children between 16 and 18 years of age to comply with the integration abroad criterion is not allowed due to the standstill clause of Article 4(1) last sentence. The Act introducing the integration abroad exam as a requirement for family reunification came into force on 15 March 2006, whereas the date of implementation of the Directive was set at 3 October 2005.

topQ: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?

answer The Netherlands

A: The law has not been changed as a result of the directive. The right to family reunification already covered the non-married partner of 18 years or older having a permanent and exclusive relationship with the sponsor (article 3.14 paragraph 1 sub b). Registered partners have the same rights as married couples.

topQ: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age?

answer The Netherlands

A: Yes. The Dutch Aliens Decree requires a minimum age of 21 years for family formation of both spouses or partners (article 3.14 paragraph 2, article 3.15 paragraph 2). Both provisions have been inserted by the Royal Decree pretending to implement the directive. The regulations provide that admission should always be refused to spouses or partners below 21 years of age.

topQ: Article 5(2) (documents and fees)
What kind of documentary evidence has to be presented with a family reunification application?

answer The Netherlands

A: The following documents have to presented with the request for (advice on) the issue of an authorisation for temporary stay (mvv). The form accompanying the request for a temporary stay was voted the most difficult form to complete by the Amsterdam Social Councils.

Spouse or registered partner:

Proof of income sponsor

Original extract from the Municipal Base Administration (GBA) which shows address and family composition (not older than 6 months)

Copy of all pages of ID certificate (Dutch nationals) or a copy of the front and the back of the residence permit or a copy of all the pages of the passport containing the residence permit

Copy of the registration of the marriage or registered partnership in the GBA

In case of marriage: a copy of the marriage certificate

In case of registered partnership: a copy of the registered partnership deed

Copy of proof that spouse or registered partner has passed the civic integration examination abroad

Unmarried partner:

Proof of income sponsor

Original extract from the Municipal Base Administration (GBA) which shows address and family composition (not older than 6 months)

Copy of all pages of ID certificate (Dutch nationals) or a copy of the front and the back of the residence permit or a copy of all the pages of the passport containing the residence permit

Guarantor's Declaration

Copy of unmarried status declaration (in case immigrant does not possess Dutch nationality or a permanent residence permit, this declaration must have been issued in the country of origin)

Copy of unmarried status declaration of the partner (certificate must have been issued in country of origin or country of permanent residence)

Copy of the proof that the unmarried partner has passed the civic integration examination abroad

Minor children (of sponsor and/or his/her spouse or partner):

Proof of income of sponsor and/or the income of the spouse or partner

Original extract from the Municipal Base Administration (GBA) which shows address and family composition (not older than 6 months)

Copy of all pages of ID certificate and of the ID document of spouse of partner (Dutch nationals) or a copy of the front and the back of the residence permit or a copy of all the pages of the passport containing the residence permit of the sponsor and the spouse or partner

Copy of child's birth certificate

In the case of a child from a previous relationship of sponsor or his/her spouse or partner:

Documents relating to the parental authority in respect of the child

Declaration of consent from the remaining parent regarding the child's departure from the country of origin.

Copy of all pages of the remaining parent's ID document
In the case of a child from a previous relationship of the spouse or the partner:

Guarantor's declaration
If child is 16 years or older:

Copy of the proof that the child has passed the civic integration examination abroad

Children of 18 years or older (of sponsor or his/her spouse or partner):

Proof of income of sponsor and/or the income of the spouse or partner

Original extract from the Municipal Base Administration (GBA) which shows address and family composition (not older than 6 months)

Copy of all pages of ID certificate and of the ID document of spouse of partner (Dutch nationals) or a copy of the front and the back of the residence permit or a copy of all the pages of the passport containing the residence permit of the sponsor and the spouse or partner

Guarantor's declaration

Copy of child's unmarried status declaration (certificate have been issued in the country of origin or of permanent residence)

Copy of child's birth certificate

Proof that leaving the child in the country of origin would cause disproportionate hardship (for instance documentary evidence showing that there are no other relatives in the country of origin, that the child is dependent on the sponsor or his/her spouse or partner and/or that the child is not able to support himself/herself in the country of origin)

Documents relating to the legal family relationship between child and sponsor or the sponsor's spouse/partner (only if the relationship is not clear from the birth certificate)

Documentary evidence relating to the contributions to the costs of the child's upbringing and living expenses since sponsor's arrival in the Netherlands

Documents relating to the legal custody of the child

Documents relating to the actual authority with respect to child (for instance documentary evidence showing that the sponsor or his/her spouse or partner are/have been involved in important decisions regarding the child's upbringing or care, including decisions regarding the choice of school, housing and social development)

Documents relating to the relatives with whom the child resides or can reside in the country of origin

Copy of the proof that the child has passed the civic integration examination abroad

Spouse, partner or child of refugee (holder of temporary residence permit) (within three months after the issuance of residence permit sponsor):

Original extract from the Municipal Base Administration (GBA) which shows address and family composition (not older than 6 months)

Copy of the front and the back of the residence permit or a copy of all the pages of the passport containing the residence permit

Documents relating to the legal familiar relationship

In case of marriage: copy of marriage certificate

In case of unmarried partner: documents showing joint partnership and the fact that the partners lived together in the country of origin

In case of child: copy of birth certificate

Documents mentioned above do not need to be legalised. In case of impossibility to enclose the documents with the request for (advice on) the issue of an authorisation for temporary stay, a separate letter should explain the reasons for the impossibility.

Family member of refugee who is an unaccompanied minor (holder of a temporary asylum residence permit):

Copy of the front and the back of the residence permit

Documentary evidence that the family member is a blood relative in the ascending line (father, mother, grandfather, grandmother)

Proof that relative has passed the integration exam abroad

In case relative has different nationality:

Proof that unaccompanied minor will be refused entry in the country of the relative's nationality

In case the request for (advice on) the issue of an authorisation for temporary stay is submitted more than three months after the residence permit was issued:

Proof of income

If unaccompanied minor has in the mean time reached the age of 18:

Documentary evidence that the Dutch Court has appointed a guardian or mentor because of the mental capacity of the former unaccompanied minor

All documents must be drawn up in Dutch, English, French or German. If the documents are not drawn up in one of the languages requested, they will have to be translated by a translator who is sworn in by a Dutch Court. All official foreign documents considering persons must be legalised. A declaration of celibacy may not be older than 6 months.
In all cases a copy of all pages of the passport of the family member needs to be added. In case the family member is a minor child without a passport, a copy of the parents passport in which the child is included needs to be added.

topQ: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration?

answer The Netherlands

A: Article 25 of the Dutch Aliens Act declares that all decisions regarding the issuing and renewal of a temporary residence permit are to be taken within 6 months after the application has been submitted. This period can be extended with another 6 months at most, if the Minister deems an advice of the public prosecutor or an investigation by a third party necessary for the decision on the application.

Note has to be taken to the fact that most immigrants have to apply for an authorisation for temporary stay. In the Aliens Circular it is mentioned that the reasonable term for deciding on a request for an authorisation for temporary stay is three months (Vc B1/1.1.1).

topQ: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?

answer The Netherlands

A: This clause is not implemented. The Royal Decree pretending to implement the Directive refers to the general rule in the Dutch Administrative Act that prescribes the public authorities to take into account all relevant circumstances when making a decision is applied. Furthermore, mention is made of Article 8 ECHR.

topQ: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?

answer The Netherlands

A: The articles in the Aliens Decree concerning the denial of a residence permit for family reunification on public order grounds are: 3.20, 3.77 and 3.78. The Royal Decree pretending to implement the Directive has not changed the articles 3.77 and 3.78. This means that an application for family reunification may be denied if the immigrant has been sentenced to imprisonment or a fine (3.77 paragraph 1 sub c). Recently, a new paragraph has been added to Article 3.77, saying that in case the Minister wants to refuse an application for a residence permit for family reunification on public order grounds, he at least has to take into account the nature and the closeness of the family and the time the family member has spent in the Netherlands, as well as the consideration whether the family member has familiar, cultural or social ties with the country of origin (see also answer to the question regarding Article 17 directive).
Article 3.77 paragraph 7 stipulates that immigrants of 12 years and above sign a declaration of antecedents when applying for family reunification.
Article 3.20 Vb used to contain a rule that set lower standards for the public order exception for family members of Dutch nationals. This rule disappeared upon implementation of the family reunification directive.

topQ: What are the similarities and differences compared to the definitions of the same notions in the context of free movement of EU citizens?

answer The Netherlands

A: The public order grounds for rejection or refusal are much more severe towards EU-citizens and their family members. The difference is, that the rejection must be based upon an actual, real and serious threat to a fundamental interest of society, and that this threat must be based upon the personal behaviour of the EU-citizen. This is more severe than the rejection grounds for a family member of a third country national, for which every sentence or on-the spot fine for a crime can justify a rejection, and where there is no explicit relationship with the personal behaviour or an actual threat required.

topQ: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?

answer The Netherlands

A: Family reunification requires that the sponsor permanently and independently disposes of an income at the level of social security for married couples. The Royal Decree implementing the directive has however set the level of income for family formation at 120% of the legal minimum wage of a worker of 23 years. The income is regarded as permanent if it will be available for at least one year from the moment of the application or of the decision on the application, therefore the employment contract will have to last for at least another year. If this requirement is not fulfilled, the permit will also be granted when the sponsor has had an employment contract over the last three years before the date of the application.
An income based on own property is regarded as permanent if the income was available for at least one year before the date of application or decision and will be available for at least one year after that date.
The income requirement is especially problematic for persons under 23 years, since the statutory minimum wage of workers younger than 23 years is considerably lower. The effect of this requirement is that a sponsor who is 18 years old has to earn almost 280% and a sponsor of 21 years old has to earn more than 160% of the minimum wage for workers of his age. Furthermore, it is less likely that workers under 23 years have been issued with a permanent employment contract or, alternatively, that they have an employment record of three years.

topQ: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)

answer The Netherlands

A: Yes, family members (adults and children of 16 and 17 years old) need to pass an integration test as a requirement for family reunification before admission in the Netherlands. The test consists of a language test (level A1 in the Council of Europe's Common Framework of Reference (CEF)) and questions regarding the Dutch society. The test has to be taken at a Dutch embassy or consulate general abroad. The way of examination is oral. The candidate answers the questions by phone, after which a computer based in the US judges whether the candidate has passed the exam. The only preparation that is provided for by the Dutch government is an education pack which can be purchased for € 63,90. The education pack includes a CD with all the questions that may come up during the part of the exam that tests knowledge of society, three mock Dutch language tests and a film about the Netherlands on dvd or video. Taking the exam costs € 350. If a candidate fails the test, there is no possibility of challenging this decision. The test will have to be taken again, which will cost another € 350.

After admission, the migrants are required to pass another integration test (language and society) on a higher level within five years. If not, the migrant can get a reduction on his benefits, fines can be posed on the migrant and a permanent or autonomous residence permit will be refused.

topQ: Does the national law distinguish between the concepts 'integration conditions' and 'integration measures' (compare Article 4(1) last indent and 7(2))?

answer The Netherlands

A: No. The Dutch language version of this directive and the long term residents directive only uses the word conditions. The Dutch government uses this apparent mistranslation as a justification for the condition to pass the integration abroad exam as a requirement for family reunification.

topQ: Article 8 (waiting period)
Is there any waiting period before the family reunification application can be filed?

answer The Netherlands

A: In principle no, but the requirement to pass the integration exam abroad can be seen as an indirect waiting period, just like the requirement of the minimum age of 21 years and the income requirement (see answer to the question concerning 7(1)(c)) for family formation. The cumulation of these conditions particularly causes a waiting period. If a sponsor marries at the age of 19, he will firstly have to wait until he or she has reached the age of 21 before an application for family formation can be filed. However, since the income requirement for family formation is et at 120% of the minimum wage of persons aged 23 and up, he or she might have to wait an extra 2 years before he or she will comply with the income requirement. In this case, a waiting period of no less than 4 years applies.

topQ: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees?

answer The Netherlands

A: The article in the Dutch Aliens Act concerning family reunification with refugees only applies to family members who actually belong to the family of the refugee. This means that the Dutch rules concerning family reunification with refugees are limited to family relationships that predate their entry.

topQ: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?

answer The Netherlands

A: Yes, in the Netherlands, all immigrants having a residence permit on grounds of asylum benefit from the more favourable provisions of Chapter V of the directive. This means that, amongst other categories, persons enjoying subsidiary protection, who are ruled out from the scope of application of the directive by article 3(2)(c), in the Netherlands profit from Chapter V of the Directive. In this respect, the Dutch policy regarding family reunification is more favourable than the directive provides for.

topQ: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?

answer The Netherlands

A: The Royal Decree implementing the directive provides for family reunification for family members in the ascending line of unaccompanied refugees who are minors. These family members, legal guardians are not mentioned, are entitled to a residence permit if they apply for family reunification within three months after the residence permit has been issued to the unaccompanied minor and if they fulfil the following conditions:

they have an authorisation for temporary stay (visa)

a valid document to cross the border

they are willing to undergo an examination regarding tuberculosis

If the application for family reunification is issued later than three months after the residence permit has been issued to the unaccompanied minor, the minor will have to prove to permanently and independently dispose of an income at social security level for single persons (€ 618,43).

topQ: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?

answer The Netherlands

A: In case the refugee is unable to show the necessary documents proving the family relationship, the Dutch Alien's Circular stipulates that the refugee must show that the fact that he cannot submit the documents can not be ascribed to him. If the applicant fails to show that the lack of documents can not be ascribed to him, the application for family reunification can be turned down. It is highly questionable whether the Dutch policy in this area is reconcilable with the Directive, which stipulates in article 11(2) that 'a decision rejecting an application may not be based solely on the fact that documentary evidence is lacking.'

In case the applicant is able to show that the lacking of documentary evidence can not be ascribed to him, he or she can revert to the possibility of a DNA-investigation. A DNA-investigation will only take place to establish the relationship between parent and child and only after it has been determined that it is impossible to provide documentary evidence.

topQ: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?

answer The Netherlands

A: The Dutch version of the directive contains an apparent mistranslation. In the first sentence of paragraph 1 of article 12 the French and English versions of the directive mention the conditions of article of article 7 as conditions refugees and their family members referred to in article 4(1) do not have to fulfil. The Dutch version however refers to the conditions of article 4(1) as conditions refugees and their family members do not have to fulfil. The only condition mentioned in article 4(1) is an integration requirement for children over 12 years who arrive independently from the rest of the family.

Still, in the Netherlands, spouses or minor children of refugees who actually belong to the family of the refugee, who have the same nationality as the refugee and who have applied for family reunification within three months after the residence permit has been granted to the sponsor obtain a residence permit on asylum grounds without fulfilling any other conditions than a public order requirement. Partners or children of age with the same nationality who depend on the refugee in such a way that they should be considered to actually belong to the refugee's family can obtain a residence permit on asylum grounds without application of the income requirement under the same conditions as spouses and minor children with the same nationality.
Upon implementation of the directive a new paragraph was added to article 3.22 of the Aliens Decree, giving spouses and minor children of the refugee with another nationality a right to family reunification without application of the income requirement in case the application was filed within three months after the sponsor has been granted a residence permit on asylum grounds. However, family members with another nationality as the refugee only have a right to obtain a residence permit on regular grounds, not asylum grounds, which means that they will have to obtain the necessary visa before they will be admitted to the Netherlands. As an extra condition for family members with another nationality, it is required that family reunification is not possible in a third country with which the sponsor or the family member has special links.

In all other cases, all the requirements for 'normal' family reunification have to be fulfilled.
The fact that the Dutch rules provide for a less favourable treatment of refugees who have a different nationality than the sponsor even if they apply for family reunification within three months after the residence permit has been granted to the sponsor can be considered contradictory to the spirit of the Directive. It is also a discrimination on nationality grounds.

topQ: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law?

answer The Netherlands

A: In the Dutch system, an applicant for family reunification will first have to apply for a visa (authorisation for temporary stay) which will allow him or her to travel to the Netherlands before he or she can apply for family reunification in the Netherlands. This is not in conformity with article 13, which makes the assumption that first an application for family reunification has to be accepted, after which member states authorise the entry of the family members, granting them every facility for obtaining the required visas. Since the Dutch system requires a double test whether the requirements for family reunification are met, namely once when at the application for the authorisation for temporary stay and then again at the application for a residence permit, the system is contradictory to the Directive, which provides only for one test regarding the right to a residence permit (article 5(1)). Recently, the Court of The Hague ruled that the Dutch system of double checking whether the requirements for family reunification are met is indeed not in conformity with the Directive (Court of The Hague 16 November 2006, LJN: AZ7350).

Furthermore, the requirement that a visa (authorisation for temporary stay) needs to be applied for in the country of origin or the country of permanent residence can be considered contrary to the obligation of article 13(1) to grant every facility for obtaining required visas. The Netherlands introduce an extra requirement for family reunification, since an application for a visa will be denied in case it is applied for in another country than the country of origin or permanent residence.

topQ: Article 14 (equal treatment)
How has the right of admitted family members to 'access to employment and self-employment in the same way as the sponsor' been implemented in national law?

answer The Netherlands

A: The access to employment correspondents with the right to work of the sponsor. It can consist of: free access to the labour market; access if the employer has granted a working permit; only specific work permitted if the employer has granted a working permit; no access.

topQ: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?

answer The Netherlands

A: The Dutch rules are in this case more favourable than the minor standard provided for by the Directive. Children of age who have held a residence permit for family reunification being a minor are entitled to an autonomous residence permit after one year (Article 3.50 Aliens Decree). Spouses and unmarried partners are allowed an autonomous residence permit after they have held a residence permit on ground of family reunification for three years (Article 3.51 Aliens Decree).

topQ: Under what conditions can an autonomous residence permit be obtained before the period of time normally required under national law?

answer The Netherlands

A: Only in exceptional humanitarian circumstances. Decision is the discretion of the Minister.
If the sponsor, who had a permit for the purpose of non-temporary stay, dies within the first three years, an autonomous permit will be granted to the spouse or unmarried partner, the children or the parent.

In other cases of breaking down the marriage or family life within the first three years (for minor children: within the first year), an autonomous permit will be granted if there are humanitarian grounds. Therefore the individual circumstances will be assessed. In the aliens circular some specific circumstances that have to be taken into account are mentioned: the situation of single women in the country of origin; the social position of women in the country of origin; the availability of reception capacity in the country of origin; the responsibility for a child born in the Netherlands or enjoying education; evidence of (sexual) violence in the family.

The level of integration in the Netherlands and the possibility of continuing the family life elsewhere are also important aspects of the assessment. All circumstances will be considered in connection with each other.
It is the family member who has to state and found these circumstances.
In all other cases there will be an assessment to consider if there are special individual circumstances that make that leaving the Netherlands cannot be required from the person. Therefore the alien must proof that there are special individual circumstances, and that he/she cannot be required to leave the Netherlands. Also family members of a sponsor with a permit for non-temporary purpose can apply for an autonomous residence permit on these grounds.
The decision is at the discretion of the Minister.

topQ: Article 16(1)(a) (resources)
Is the income of family members taken into account for the calculation of the sufficient resources at the time of the renewal of the permit?

answer The Netherlands

A: Yes. The Aliens Act provides in Article 18 paragraph 1 sub d for a refusal to renew the residence permit of the immigrant if he/she or the person with whom the immigrant resides no longer independently disposes of a permanent income. Article 3.85 paragraph 1 of the Aliens Decree, however, specifies that an application for renewal of a residence permit will not be refused if both family members jointly dispose of an independent and permanent income.

topQ: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?

answer The Netherlands

A: Regarding the relationship between parents and minor children, the Dutch rules require the existence of a 'real family relationship' (3.14 paragraph 1 sub c Aliens Decree). In the Alien's Circular (Vc B2/6.4.2) it was stipulated that a real family relationship was deemed no longer to exist if parent and child had been separated for more than five years, the so called 'period of reference'. The Dutch government deemed the requirement of a real family relationship in accordance with the ground for refusal of an application for entry and residence in Article 16(1)(b) of the Directive, which provides for a ground of refusal for family reunification in case the sponsor and the family member no longer live in a real family relationship. Various Courts (Rechtbank Den Haag, 16 November 2005, JV 2006/28, Rechtbank Den Haag, 21 December 2005, (LJN AU8416), Rechtbank Middelburg 14 March 2006, JV 2006/177), however, judged that the Dutch policy concerning the real family relationship went much further than the room left by Article 16(1)(b). By letter of 25 September 2006, the Minister of Alien Affairs and Integration, abolished the policy that a real family relationship was deemed no longer to exist in case of separation of parent and child of more than five years. In the letter, she stated that for the interpretation of the requirement of a 'real family relationship' more connection needed to be made with Article 8 EVRM and that, consequently, the period of reference will no longer be applied. The Minister did not refer to the Directive. However, the fact that the period of reference was abolished can be ascribed to the Directive.

A real family relationship between parent and child is deemed no longer to exist in case the child:

Goes to live on his/her own and is self-supporting.

The child forms his/her own family by getting married or by starting a relationship with someone.

topQ: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?

answer The Netherlands

A: Provisions on marriages of convenience are contained in the 1994 Act on the prevention of Marriages of Convenience (Stb. 1994, 405). This Act contains provisions to both prevent and repress marriages of convenience. The Act altered the provisions of titles 4 and 5 of book I of the Dutch Civil Code.
According to Article 44 paragraph 1 sub k of Book I of the Civil Code, the municipal official of the Registry of Births, Deaths and Marriages can in case one or both spouses or registered partners hold another nationality than the Dutch nationality only cooperate with the registration of a marriage if a declaration of the Superintendent of the police is submitted. In this declaration, information regarding the residence of the immigrant is contained as well as an advice of the Superintendent for the municipal official whether he should or should not cooperate in the marriage. The Superintendent bases his advice on indications whether the marriage may or may not be one of convenience. A negative advice of the Superintendent needs to be justified and accompanied by a completed questionnaire with possible observations by the Superintendent that can indicate a marriage/partnership of convenience. Only a justified negative advice of the Superintendent will allow the municipal official to decide not to conclude the marriage or registered partnership.
This practice is in conformity with Article 16(4) of the Directive.

topQ: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?

answer The Netherlands

A: Initially, the Royal Decree pretending to implement the Directive only referred to the general rule in the Dutch Administrative Act that prescribes the public authorities to take into account all relevant circumstances when making a decision is applied. Furthermore, Article 8 ECHR is mentioned in the Royal Decree. However, recently, a new paragraph was added to Articles 3.77 (concerning the refusal of an application for a residence permit on public order grounds) and 3.86 (concerning the refusal to renew a residence permit on public order grounds), saying that in case the Minister wants to deny an application, or, in case of Article 3.86, refuse to renew a residence permit, on public order grounds, he will, in case of family reunification, at least have to take into account the nature and solidity of the family relationship, the duration of the stay of the family member and the existence of family, cultural or social ties with the country of origin (see also answer to the question regarding Article 17 directive). Article 17 still is only implemented partly in the regulation, namely only related to a rejection on public order grounds. General guidelines on these considerations in case of a rejection on all grounds, were already laid down in the Alien Circular. These guidelines give an interpretation of the obligations derived from the jurisprudence on article 8 ECHR.

topQ: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?

answer The Netherlands

A: Yes. A negative decision regarding the application or the renewal of a residence permit on the basis of family reunification can be reviewed by an independent administrative Court, after administrative review by the Integration and naturalisation Service (IND) that made the decision. The decision will be fully reviewed. A negative decision by the administrative Court can be reviewed by the Dutch Council of State, the highest Dutch administrative Court. Only the alien concerned can have a negative decision reviewed. This means that only the family member and not the sponsor can commence proceedings.
A possibility of judicial review by an independent administrative court (the Court of the Hague) equally exists in case of rejection of an application of an authorisation for temporary stay. However, also in this case administrative review has to have taken place by the Minister of Foreign Affairs.

topQ: What are in your view the main strengths and weaknesses of the Directive?

answer The Netherlands

A: In our opinion, the main strength of the Directive is that it gives a subjective right to family reunification to the members of the nuclear family.

The main weakness is that it leaves a large margin of appreciation for the member states. The Directive contains many optional provisions. This means that it is likely that little harmonisation in the field of family reunification will take place. Member States are allowed to adjust their policy to the lowest common denominator, especially since the Directive does not contain a general standstill clause.

The Directive connects to the period of five years for awarding an autonomous residence permit, which is the same period as mentioned in the long-terms residents Directive for a long-term residents permit. In the Netherlands, immigrants can apply for naturalisation after five years of legal residence.
The clause considering judicial review (Article 18) is so vague, that it suggests that legal review member states have to provide for is below the level of objective review.
The clause which provides for the introduction of integration measures abroad (Article 7(2)) gives the impression that it is possible to estimate immigrant's chances of integration before arrival, whereas this actually is very difficult to judge. This leads to prejudice.

topQ: Please add any other interesting information on the Directive or its implementation in your country that might be relevant for our study.

answer The Netherlands

A: The implementation has led to a discussion of the introduction of new conditions for family reunification by the Dutch government. The Royal Decree pretending to implement the Directive introduced the criterion of 21 years of age and an income of 120% of the minimum wage for family formation. On the other hand, the Directive provides the possibility to challenge the legality of certain Dutch measures, such as the requirement to pass the integration exam abroad.
Also, the Directive has led to a discussion on the reversed discrimination of the own Dutch nationals compared to third country nationals seeking family reunification.

Some of the Dutch exceptionally strict measures, such as the condition that parent and child may not have been separated for more than five years in order to have an actual family relationship (see the question regarding Article 16(1)(b), have been abolished due to the Directive. Article 8 is taken more seriously, whereas the Directive goes much further when it comes to conferring rights to family reunification to individuals.

topQ: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.

topQ: This table refers only to mandatory provisions of the Directive.
Please choose for each article one of the four alternative labels:

correct transposition

no transposition

violation of the Directive

unclear

If you choose the label 'violation' or 'unclear', please add a footnote with a short explanation.

answer The Netherlands

A:

Articles of the Directive

Opinion about Transposition

Explanation

5(5)

violation

This Article has not been implemented into Dutch legislation. The Royal Decree pretending to implement the Directive refers to the general rule in the Dutch Administrative Act that prescribes the public authorities to take into account all relevant circumstances when making a decision is applied. Furthermore, mention is made of Article 8 ECHR. The obligation to have due regard to the best interests of minor children when examining an application is mentioned nowhere in the Dutch law.

10(3)(a)

correct transposition

11

unclear

In case the refugee is unable to show the necessary documents proving the family relationship, the Dutch Alien's Circular stipulates that the refugee must show that the fact that he cannot submit the documents can not be ascribed to him. If the applicants fails to show that the lack of documents can not be ascribed to him, the application for family reunification can be turned down. It is highly questionable whether the Dutch policy in this area is reconcilable with the Directive, which stipulates in article 11(2) that 'a decision rejecting an application may not be based solely on the fact that documentary evidence is lacking.'

13(1)

violation

The fact that a visa has to be applied for in the country of country of origin or the country of permanent residence can be considered contrary to the obligation of article 13(1) to grant every facility for obtaining required visas. The Netherlands introduce an extra requirement for family reunification, since an application for a visa will be denied in case it is applied for in another country than the country of origin or permanent residence.

14(1)

correct transposition

15

correct transposition

16(1)(b)

correct transposition

Firstly, violation, at present correct transposition

17

unclear

The considerations of Article 17 were recently introduced in the articles concerning denial of an application or the renewal of the residence permit on public order grounds. However, these considerations should also be taken into account when an application or the renewal of the residence permit is denied on other grounds than public order grounds. With regard to rejections on all grounds, guidelines are laid down in the Alien Circular on how to take all considerations and interests into account. However, these are limited to an interpretation of the jurisprudence on article 8 ECHR.